The benefits of an in-house discovery team

The e-discovery monster continues to grow and become more unwieldy by the day. Rising mountains of data that now are reaching into the proverbial and literal clouds coupled with scores of lawyers willing to fight to the death over search terms, production requirements and who will bear the ignominy of the incredible costs have added fangs and warts to this demon. But there is another weapon, perhaps underappreciated, for legal departments to add to their arsenal—their own crack group of in-house e-discovery warriors.

The mission, composition, scope and even reasons for an in-house e-discovery team differ among companies. Depending on need, an organization could just have a team composed solely of e-discovery law subject matter experts who assist fellow in-house counsel with managing discovery and dealing with the substantive areas of litigation. A company also could have a scaled-up team that does processing and hosting in-house with reviewers, or even bring almost everything in-house for first-pass review. The possibilities are endless.

Regardless of a company’s plan, the general goal should be to have a cross-disciplinary team filled with lawyers, IT and records people, project managers, finance personnel and data specialists, among others, who integrate with the litigation team to cost-effectively manage preservation.

“The more that a company can own its data and not redo work, even across cases, that’s where the real cost savings is,” says David Kessler, a partner and co-head of Fulbright & Jaworski’s e-discovery and information governance practice. “And it’s also where they can be most efficient in keeping control of the monster that is e-discovery.”

Step by Step

The first step for organizations when looking to build an e-discovery team is to do a comprehensive assessment of where things stand. Legal should determine the nature and volume of litigation that exists, look at the infrastructure in place and be able to answer the following questions: What type of network is used? Where do certain types of information reside? What departments do plaintiffs typically target?

Once the assessment phase is completed, the next step is to identify the low-hanging fruit and the main pain points. Dominic Jaar, national practice leader and partner, KPMG Canada, information management and e-discovery, suggests doing a gap analysis followed by reworking three different areas: governance, technology and culture.

To rework governance, teams must develop new technologies and procedures, catalog existing procedures that are undocumented, and often review and modify existing policies that perhaps do not sufficiently take into consideration the volume of documents that are in electronic format. As part of this, teams also will need to create policies that create liability within the organization.

“Unless someone is liable and fully responsible, nothing happens,” Jaar says. “We need to define different policies and identify who’s responsible for what. By assigning responsibilities based on the employee’s function, that’s where you truly start to see results.”

On the technological front, Jaar suggests targeting the left-hand side of the Electronic Discovery Reference Model (EDRM), which outlines the stages of the e-discovery process, and focusing on improving records and information management. This often means plotting defensible data deletion plans, better classification organization of data, and implementing or leveraging existing document management systems. In terms of actual e-discovery, that means implementing data collection software and being able to process small volumes of documents.

The final area, culture, often is the most difficult to change and requires the most work, but also offers the greatest benefits. It is critical to educate people about e-discovery, define how they can get involved, and explain how different tools work and what they can do on a day-to-day basis to reduce the potential burden and cost of discovery.

“The culture change is significant,” Jaar says. “We can make some really important gains on all levels—from monetary to time, risk and burden. That’s why the team is key to the organization. They’re going to be your e-discovery representative from all of the business units and departments.”

Outside Assistance

Outside counsel also play a role in the development and ongoing function of the team. Although outside counsel have varying degrees of e-discovery savvy, they can be extremely helpful, especially with their knowledge of case law and ability to provide background about similar organizations in the marketplace.

“You want to create a process where you’re not dependent on any few individuals who may leave or not be available and automate as much as you can,” Kessler says. “I help in that role for companies that don’t do this. And for companies that do, I act as an adviser to keep them up on the law and answer trickier questions that they’re not familiar with.”

Dykema Gossett Partner and e-discovery practice head Dante Stella adds that outside counsel generally negotiate the parameters of discovery in every case, and they can be considered an added line of defense against the other side’s demands.

“We design a system around what the client has and what we need to do in the case,” he says. “We work with whatever structure the client has—and sometimes they don’t have a structure at all.”

Necessary Tools

Once the people and processes are in place, organizations should seek out technology to support them.

“Too often companies buy the technology first and then try to fit the people around it,” Kessler says. “That’s an inefficient way of going about it because not all technology is right for a given company. It doesn’t work if you don’t have the right people to maximize the true power of the tool.”

Jaar says the first tool any legal department should have is a case management system, which tracks cases and generates historical metrics, annual reports and expense reports. Next, he recommends a legal hold management tool. He also says the team should have the capacity to do basic data filtering because most vendors’ pricing models are based on volume, and may want a review platform that is capable of handling smaller and medium-size cases internally.

Kessler believes e-discovery teams should incorporate project management and data tracking software, which will let them know what’s under preservation and what’s under collection. “The reality is that a lot of e-discovery disputes happen months if not years after the fact, so keeping track of the information almost is as important as doing it right,” he explains.

Additionally, Stella suggests that his clients have indexing and search software, which can operate on local files or the network, and allows selective pulling of data either from a live system or archives.